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Freedom of Information Amendment (Requests and Reasons) Bill 2015

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2013-2014-2015

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

FREEDOM OF INFORMATION AMENDMENT (REQUESTS AND REASONS) BILL 2015

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of Senator Joseph Ludwig)



FREEDOM OF INFORMATION AMENDMENT (REQUESTS AND REASONS) BILL 2015

 

OUTLINE

 

This Bill amends the Freedom of Information Act 1982 (the FOI Act ) to require government agencies and Ministers to publish the exact wording of freedom of information requests. The amendments will also require agencies and Ministers to publish a statement of reasons concerning the decision to allow or refuse the release of requested documents.

 

The Bill will achieve the purposes of:

 

·          ensuring transparency and accountability are included within the framework of government decisions concerning freedom of information requests;

·          allowing the public to view requests that have been made and the reasons why documents were or were not released;

·          allowing applicants seeking similar documents to build upon previous requests; and

·          reducing duplication of requests.

 

Publishing the reasons for decisions will allow for scrutiny of departmental decisions and open the door to further reform to allow review of requests by parties other than the initial applicant.

 

NOTES ON CLAUSES

Clause 1: Short Title

1.           Clause 1 is a formal provision specifying the short title of the Bill.

Clause 2: Commencement

2.           Clauses 1 to 3 of the Bill will commence on the day it receives Royal Assent. Schedule 1 of the Bill will commence on the day after the end of the period of 3 months beginning on the day it receives Royal Assent.

Clause 3: Schedules

3.                        Clause 3 is an activating clause providing that each Act specified in a Schedule to the Bill is amended or repealed as is set out in the applicable items in the Schedule. Any other item in a Schedule to the Bill has effect according to its terms.

Schedule 1—Amendments

Freedom of Information Act 1982

Item 1: Subsection 4(1)

4.           This item inserts a new definition of “working day” in the interpretation section of the Act, which applies in relation to a requirement in a provision of the FOI Act to publish information, to mean a day that is not a Saturday, a Sunday, or a public holiday in the place where the function of publishing the information under the provision is to be performed.

Items 2 and 3: Paragraphs 11C(3)(b) and (c)

5.                        Where access to a document has been granted, these items repeal the option that an agency or Minister may publish on a website mere details of how the information may be obtained. The information must be available for downloading from the website or there must be a link on the website to another website, from which the information can be downloaded. “Information” refers to the content of any document a person has been given access to under section 11A.

Item 4: Subsection 11C(7)

6.                        This item removes the old definition of “working day” from subsection 11C(7) following the insertion of the definition in the interpretation section by item 1.

Item 5: Section 11D

7.                   This item inserts new section 11D.

8.                   If a person is given access to a whole document, subsection 11D(2) requires an agency or Minister to publish the request and the reasons for the decision before the end of 10 working days after the day the person is given access.

9.                   If a person is given access to an edited copy of a document in accordance with section 22 of the FOI Act, paragraph 11D(3)(a) requires the agency or Minister to publish the request and the notice under subsection 22(3) within 10 working days after the decision is made. Subsection 22(3) requires the agency or Minister to give the applicant notice in writing that an edited copy of the document has been prepared, the grounds for the deletions, and whether any matter has been deleted because it would cause the document to be exempt under the Act. If a person makes a request under subsection 22(4) for a notice to be published in accordance with section 26, new paragraph 11D(3)(b) requires the agency or Minister to publish the notice within 10 working days after the notice is given.

10.               If a person is not given access to a document at all, paragraph 11D(4)(a) requires the agency or Minister to publish the request within 10 working days after the day the decision is made. Paragraph 11D(4)(b) also requires the agency or Minister to publish the notice given in accordance with section 26 within 10 working days after the notice is given. A notice given in accordance with section 26 must, among other things, state findings on material questions of fact and the reasons for the decision, state the name and designation of the person giving the decision, and inform the applicant of their rights to review and complaint.

11.               Subsection 11D(5) requires the agency or Minister to publish the requests, reasons or notice on a website, without charge, by making them available for download, or by publishing on the website a link to another website where it is available for download.

12.               Subsection 11D(6) requires that certain information be removed from requests, reasons or notices before they are published. This includes information that would, at the time the request, reasons or notice is to be published, cause the request, reasons or notice to be an exempt document under Part IV of the FOI Act. Further, in order to protect the privacy of individuals, this item requires that certain information be removed including personal information and information about the business, commercial, financial or professional affairs of a person, if it would be unreasonable to publish the information. Paragraph 11D(6)(e) requires the removal of information that the Information Commissioner has determined should be exempted from publication, in accordance with subsection 11C(2) of the FOI Act.

Item 6: Application

13.               This item specifies that amendments made by the Bill apply in relation to requests referred to in paragraph 11A(1)(a) of the FOI Act that are made on or after the day the Bill commences.



 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Freedom of Information Amendment (Requests and Reasons) Bill 2015

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

 

Overview of the Bill

This Bill amends the Freedom of Information Act 1982 (the FOI Act ) to require government agencies and Ministers to publish the exact wording of freedom of information requests. The amendment will also require agencies and Ministers to publish a statement of reasons concerning the decision to allow or refuse the release of requested documents.

 

Human rights implications

This Bill engages the right to protection against unlawful interference with privacy contained in Article 17 of the International Covenant on Civil and Political Rights (the ICCPR ).

 

Article 17 of the ICCPR provides that:

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation, and that everyone has the right to protection of the law against such interference or attacks.

 

The Bill protects against the possible limitations on the right to privacy that may otherwise flow from the requirements in the Bill to publish freedom of information requests and reasons for a decision. Subsection 11D(6) of the Bill requires that certain information be removed before a request and reasons are published, including information that would, at the time the request, reasons or notice is to be published, cause the request, reasons or notice to be an exempt document under Part IV of the FOI Act. Part IV, section 47F, of the FOI Act contains a public interest conditional exemption with regard to personal privacy which includes matters to which an agency or Minister must have regard to in determining whether the disclosure of a document would involve the unreasonable disclosure of personal information.  Further, in order to protect the privacy of individuals, the Bill requires that personal information and information about the business, commercial, financial or professional affairs of a person be removed if it would be unreasonable to publish the information. Under the current subsection 11C(2) of the FOI Act the Information Commissioner has discretion to determine that certain information should not be published if it would be unreasonable to publish the information. Paragraph 11D(6)(e) of the Bill requires that this information also be removed.



 

Conclusion

The Bill is compatible with human rights because, to the extent it engages with the right against arbitrary interference with privacy, it contains sufficient protections against limiting this right while also promoting government accountability and transparency.

 

Senator Joseph Ludwig